[ v25 p1090 ]
25:1090(92)CA
The decision of the Authority follows:
25 FLRA No. 92
U.S. DEPARTMENT OF ENERGY
WASHINGTON, D.C. AND
U.S. DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO
Respondents
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
GOVERNMENT COORDINATING COUNCIL #1
(LOCALS 640, 1759, 1959, 2159 and 1245)
Charging Party
Case No. 7-CA-50281
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Federal Labor
Relations Authority" in accordance with section 2429.1 of the
Authority's Rules and Regulations. The complaint alleges that the
Respondents violated section 7116(a)(1) and (6) of the Federal Service
Labor-Management Relations Statute (the Statute) by failing and refusing
to comply with a Decision and Order of the Federal Service Impasses
Panel (the Panel) in Case No. 84 FSIP 29.
II. Background
The Charging Party and Respondent U.S. Department of Energy, Western
Area Power Administration, Golden, Colorado (Respondent Golden or WAPA)
were parties to a three-year collective bargaining agreement negotiated
in 1981, which provided for periodic reopeners for the purpose of
amending or modifying the agreement or any part of it. In April 1983,
the parties commenced mid-term negotiations. Article 17 of the
collective bargaining agreement governed negotiations and established in
Section 17.7 a procedure for the parties to utilize when direct
negotiations do not result in agreement. That Section provided as
follows:
When agreement is not reached in direct negotiation on rates of
pay or working conditions affecting employees covered by this
agreement, either party may invoke the services of a mediator to
be selected jointly by the parties. The mediator shall use his
best efforts to bring the parties to agreement.
If such efforts to bring about an agreement through mediation
are not successful, the Union and the Employer shall submit their
disagreement to arbitration. The parties shall, through the
negative selection process, select an arbitrator from a panel of
five (5) arbitrators supplied by the Federal Mediation and
Conciliation Service. The decision of the arbitrator shall be
reviewed by the Administrator of Western for conformity to this
agreement, and shall be final and binding on both parties upon
approval by the Administrator.
The expenses of mediation and arbitration, including the
compensation and expenses of any mediator or arbitrator shall be
borne equally by the Union and the Employer.
During their mid-term negotiations, the parties sought the assistance
of mediators to assist with the negotiations and ultimately engaged the
service of an arbitrator as provided for in Section 17.7. The
arbitrator ruled on a number of outstanding issues. Among the issues
that were the subject of negotiations, and are involved in this case,
are the following: the Charging Party's proposal to delete the portion
of Article 17, Section 17.7 which allows the Administrator of WAPA to
review the arbitrator's decision, thereby in essence making the decision
of the arbitrator final and binding; and whether a wage adjustment for
certain employees should be given retroactive effect. On September 15,
1983, the arbitrator issued his decision in which he determined, based
on an interpretation of the agreement and the parties' bargaining
history, that the arbitration procedure provided for in Article 17,
Section 17.7 was advisory in nature. Therefore, his decision would be
advisory in nature, with one exception not relevant to this case, and
would be subject to approval by the Administrator of WAPA. However, the
arbitrator strongly recommended that Section 17.7 be amended, as the
Charging Party had requested, to provide for binding interest
arbitration in future negotiations between the parties. As to the wage
adjustment issue, again based on an interpretation of the agreement as
well as relevant statutes, the arbitrator agreed with the Charging
Party's position that the adjustment be given retroactive effect to a
date in June 1983.
The Administrator of WAPA reviewed the arbitrator's decision in
accordance with Section 17.7 and, on September 29, 1983, disapproved the
recommendations as to the two issues involved in this case. On November
25, 1983, Respondent U.S. Department of Energy, Washington, D.C.,
(Respondent Washington) performed a review under section 7114(c) of the
Statute of "the 1983 modifications to the negotiated agreement between
(WAPA and the Charging Party)." No review however was conducted of those
provisions of the arbitrator's decision which had previously been
disapproved by the Administrator of WAPA. Respondent Golden
subsequently implemented other provisions which had been reviewed and
approved by Respondent Washington, effective on November 25, 1983.
Thereafter, on or about December 5, 1983, the Charging Party filed a
request for assistance with the Panel. The Charging Party argued that
the parties were still at impasse over the issues of Article 17, Section
17.7 and the retroactivity of the wage adjustment since the
recommendation and decision of the arbitrator on these issues had been
disapproved. /1/ The Respondents argued that no impasse existed and
therefore the Panel lacked jurisdiction over the matter. Contrary to
the Respondents' assertion, the Panel determined that it did in fact
have jurisdiction and proceeded to resolve the issues on their merits.
As to Article 17, Section 17.7, the Panel directed the parties to adopt
the Charging Party's proposal with an amendment to provide that the
arbitrator's decision is final and binding unless either party timely
files exceptions under section 7122 of the Statute. The Panel likewise
ordered the parties to adopt the Charging Party's proposal that the wage
adjustment be made retroactive to the first pay period in June 1983.
The Panel's Decision and Order was issued on October 3, 1984.
Upon receipt of the Panel's Decision and Order, Respondent Golden
transmitted the Decision and Order to Respondent Washington for review
pursuant to section 7114(c) of the Statute. On October 30, 1984,
Respondent Washington disapproved the Panel's Order. Respondent Golden
then notified the Charging Party that the Panel's Decision and Order "is
without consequence and has no effect on our current labor-management
agreement." Also since that date, the Respondents have refused to
implement and have not complied with the Panel's Decision and Order.
III. Positions of the Parties
The Charging Party argues that the Panel properly asserted
jurisdiction over the impasse and correctly decided the merits of the
dispute. Accordingly, the Respondents' conceded failure to comply with
the Panel's Decision and Order is a violation of the Statute. To remedy
this conduct, the Charging Party has requested that the Respondents be
ordered to comply with the Decision and Order and to pay "expenses and
attorney's fees and costs, and costs of litigation" to the Charging
Party. /2/
The General Counsel's position was limited to arguments that the
Respondents' admitted failure and refusal to comply with the Panel's
Decision and Order was a violation of section 7116(a)(1) and (6) of the
Statute. The General Counsel specifically did not address whether or
not the Panel properly exercised jurisdiction over the matter in the
first instance and did not address the question of payment of attorney's
fees and expenses. The General Counsel did request, however, that the
Panel's Decision and Order be made retroactive to October 30, 1984, and
that the wage increase be made retroactive to the first pay period in
June 1983.
The Respondents argue that the Panel should not have asserted
jurisdiction over the matter in the first instance. They contend that
Article 17, Section 17.7 constituted a procedure for resolving the
parties' impasse, that the impasse was resolved pursuant to this
procedure and that by agreeing to the terms of Article 17, Section 17.7,
the Charging Party had waived its right to seek the assistance of the
Panel in resolving the dispute. The Respondents argue more particularly
that under 5 U.S.C. Section 5343 (Amendments) (1982) (Section 704 of the
Civil Service Reform Act of 1978 (CSRA) and prior decisions of the
Panel, /3/ the type of procedure contained in Article 17, Section 17.7
was a lawful procedure to be used in lieu of the procedures set forth in
section 7119(c) of the Statute. The Respondents further argue, for
various reasons, that the Panel's Decision and Order conflicts with the
Statute and the parties' collective bargaining agreement. Finally, the
Respondents object to the Charging Party's request for payment of legal
expenses.
IV. Analysis
The question before us is whether the Panel properly ruled on the
merits of the dispute. If it did, then the Respondents' conceded
failure to comply with the Panel's decision is a violation of section
7116(a)(1) and (6) of the Statute. For the reasons which follow, we
find the Respondents' conduct was violative of section 7116(a)(1) and
(6) of the Statute.
First, we agree with the Panel that the parties were at an impasse in
their negotiations. We also agree with the Panel's finding that the
Charging Party had not clearly and unmistakably waived its right to seek
Panel assistance in resolving the dispute.
The Respondents now argue in addition to their assertion that the
Panel improperly asserted jurisdiction, that the Panel's Decision and
Order conflicts with the Statute and/or provisions of the parties'
agreement. Before addressing these arguments and the Panel's decision
on the merits, two of our recent decisions, which involve negotiations
concerning "prevailing rate employees," such as are involved in this
case and who, by law, have certain unique bargaining rights in the
Federal sector, warrant discussion.
A. Prior Authority Decisions
In Columbia Power Trades Council and United States Department of
Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986), the
Authority discussed the interpretation and application of section 704 of
the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92
Stat. 1111, 1218, codified at 5 U.S.C. Section 5343 (Amendments) (1982).
/4/ Essentially, that section provides that matters pertaining to terms
and conditions of employment and pay and pay practices which were
subject to bargaining by prevailing rate employees covered under section
9(b) of Pub. L. No. 92-392, codified at 5 U.S.C. Section 5343
(Amendments) (1982), /5/ prior to August 19, 1972, shall continue to be
subject to bargaining without regard for the provisions of chapter 71
(the Statute), subchapter IV of chapter 53 (prevailing wage rate
systems), and subchapter V of chapter 55 (premium pay), of title 5 of
the United States Code. In that case, the Authority found that
particular matters which had been the subject of bargaining prior to
August 19, 1972, continued to be within the scope of bargaining and were
protected by section 704 from limitations on the scope of bargaining.
In the second case, U.S. Department of Energy, Western Area Power
Administration, Golden, Colorado, 22 FLRA No. 86 (1986), petition for
review filed, U.S. Dept. of Energy, Western Area Power Administration,
Golden, Colorado v. FLRA, No. 86-2414 (10th Cir. Sept. 25, 1986), and
cases cited therein as WAPA 1 and WAPA 2, /6/ which all involve the same
parties as are involved in this case, the Authority found the employees
represented by the Charging Party had been included in bargaining units
which historically had bargained over rates of pay. Therefore, the
unlawful exclusion of certain employees from the bargaining unit and the
failure to negotiate with respect to their rates of pay were found to be
violative of the Statute. The respondent, WAPA, was ordered to bargain
concerning the rates of pay and retroactively apply whatever agreement
was reached.
We will now address the merits of the Panel's Decision and Order on
the two issues that were at impasse in this case.
B. Binding Interest Arbitration Procedure
The Panel directed the parties to adopt the Charging Party's
proposal, as amended by the Panel, providing for the use of binding
interest arbitration for the resolution of negotiation impasses. In so
directing, the Panel noted first that parties negotiating pursuant to
section 704 of the CSRA may request Panel assistance in resolving
negotiation impasses, but they need not do so. The Panel then
determined that ordering a binding interest arbitration procedure for
the resolution of future negotiation impasses should promote and
strengthen the parties' labor-management relationship. Finally, the
Panel found that the comparability data before it supported the Charging
Party's desire for direct access to binding interest arbitration without
the need for Panel approval.
The Respondents argue that the Panel's Decision and Order with
respect to this issue violated various provisions of section 7119 of the
Statute. Specifically, they argue that binding interest arbitration may
be ordered only if both parties agree to the procedure and the Panel has
approved it on a case-by-case basis. The Respondents also argue that
the Panel must first assist the parties before it can order final and
binding arbitration.
As found in Columbia Power Trades Council, supra, matters which were
subject to bargaining prior to August 19, 1972, are protected by section
704 from any possible limitations on bargaining contained in the
Statute. Here, the record indicates that dispute resolution procedures
for negotiation impasses had been negotiated on behalf of certain
prevailing rate employees represented by the Charging Party prior to
August 19, 1972. Thus, the Charging Party states without contravention
that contractually required interest arbitration, without prior resort
to the Panel, has been in effect for many years involving certain of its
constituent locals and the Bureau of Reclamation, functions of which
were transferred in 1977 to create the Department of Energy. Further,
the bargaining unit employees involved in Department of the Interior,
Bureau of Reclamation, Regional Office, Lower Missouri Region, Denver,
Colorado (78 FSIP 41), supra, n.3 (wherein it was noted that a history
of outside arbitration for certain disputes existed since 1960),
includes employees who are currently in the bargaining unit involved in
this case. /7/ The Respondents also concede that section 704 of the
CSRA permits the parties in this case to negotiate provisions which may
be in conflict with the Statute, /8/ and in fact rely on the decisions
of the Panel in 78 FSIP 41 and 79 FSIP 38, both cited at n.3, to support
their position that procedures for resolving negotiation disputes do not
require resort to the Panel.
Based on the record as a whole, therefore, we find that the Panel
properly directed the parties to adopt a procedure for binding interest
arbitration.
C. Retroactive Wage Adjustment
The Panel directed the parties to adopt the Charging Party's proposal
that a wage increase for bargaining unit employees be made retroactive
to the first pay period in June 1983. The Panel found that this was
consistent with the interest arbitrator's decision as to this matter and
also that the Respondents had essentially agreed with the arbitrator's
decision and reasoning although ultimately rejecting the recommendation.
The Respondents now argue as they had in submissions to the Panel
that the retroactive wage increase is contrary to the parties'
agreement. More particularly, they argue that a wage adjustment
requires the approval by the Administrator of WAPA and that such
approval did not occur until September 29, 1983. Therefore, any wage
adjustment could only become effective following this date and could not
be made retroactive to a date in June.
There is no dispute that the parties were obligated to bargain
concerning the wage adjustment. As stated in U.S. Department of Energy,
Western Area Power Administration, supra, the employees involved, who
are the same as in this case, had historically been included in a unit
which negotiated over wages and continued to enjoy the protection of
section 704 of the CSRA. The question with which the interest
arbitrator was presented was whether the adjustment could be made
effective on a certain date. The arbitrator interpreted provisions of
the parties' agreement before concluding that certain conditions set
forth in the agreement had been met and therefore the adjustment could
appropriately be made effective in June 1983. After this recommendation
was rejected by the Respondents and the Charging Party sought the
Panel's assistance in resolving the dispute over this matter, the Panel
likewise weighed all the arguments and concluded that the Charging
Party's position provided a reasonable basis for the resolution of the
dispute.
We find no basis on which to conclude that the Panel improperly ruled
on this issue. We note particularly that both the interest arbitrator
and the Panel examined the Respondents' arguments concerning the effect
of relevant agreement provisions and found them unpersuasive. No
additional arguments have been raised here which warrant a finding that
the Panel improperly decided this issue.
V. Conclusion
We find that the Respondents' conceded failure to comply with the
Panel's Decision and Order in Case No. 84 FSIP 29 is a violation of
section 7116(a)(1) and (6) of the Statute. More particularly as to
Respondent Washington, the Authority has previously held that an
improper agency head disapproval of a Panel-imposed provision, as
occurred in this case when Respondent Washington disapproved the Panel's
decision, constitutes a failure or refusal "to cooperate in . . .
impasse decisions" in violation of section 7116(a)(1) and (6). See, for
example, Department of the Treasury and Internal Revenue Service, 22
FLRA No. 89 (1986), petition for review filed, Department of the
Treasury, Internal Revenue Service v. FLRA, No. 86-1475 (D.C. Cir. Aug.
25, 1986). As for Respondent Golden, we find that its conduct in
failing to comply with the Panel's Decision and Order was also violative
of section 7116(a)(1) and (6). Unlike the factual situation presented
in the Department of the Treasury case, in which we found that it would
not effectuate the purposes of the Statute to find a violation against
the party that had simply engaged in the ministerial act of forwarding
the Panel's decision to the agency head for review and thereafter failed
to implement the decision, we view Respondent' Golden's actions as being
more than ministerial in this case. The General Counsel has also so
argued. The facts in this case indicate that Respondent Golden's
Administrator initially rejected the interest arbitrator's
recommendation and decision, then Respondent Golden argued against the
Charging Party's attempt to seek a Panel-imposed resolution, and argued
too that the Panel had no jurisdiction in the matter. In view of
Respondent Golden's conceded failure to comply with the Panel's Decision
and Order and its actions as a whole, we conclude that its conduct was
more than ministerial and constituted a violation of the Statute in its
own regard.
VI. Remedy
To remedy the unlawful conduct, the Authority will order the
Respondents to comply with the Panel's Decision and Order in 84 FSIP 29
by granting the wage increase to bargaining unit employees retroactive
to the first pay period in June 1983 and by adopting a procedure for
binding interest arbitration. In ordering adoption of the binding
arbitration procedure, we recognize the possibility that in subsequent
negotiations the parties may have mutually agreed to some other
procedure or to no procedure at all. An order requiring the parties to
adopt a particular procedure at this time might upset whatever different
agreement has been reached. Since we do not view this result as
desirable or helpful to the parties, we will order adoption of the
binding interest arbitration procedure, as directed by the Panel, except
to the extent that the parties have mutually agreed otherwise.
Additionally, and as previously noted, the General Counsel has requested
that we order the Panel's decision to be implemented retroactive to
October 30, 1984. We do not view this request as feasible in this case.
The effect of the General Counsel's request would be to make binding
any interest arbitrations that may have occurred subsequent to October
30, 1984. If there were any interest arbitrations after that date and
the parties, including any interest arbitrators, proceeded on the
assumption that the arbitration was not binding, an order that would now
impose binding effect on such arbitration would be unjust and
inconsistent with the Statute. Conceivably, if the parties had
approached any such intervening interest arbitration proceeding with the
knowledge that the award would be binding, their positions might well
have been different. Also, parties have the statutory right to file
exceptions to interest arbitration awards with the Authority under
section 7122 of the Statute, but they must do so in a timely manner.
/9/ By making binding any interest arbitration award issued subsequent
to October 30, 1984, in effect we would be denying parties the right to
file exceptions to all but the most recent arbitration decisions to
which timely exceptions could be filed. We do not view such a result as
fair or warranted. Rather, requiring the parties to adopt a binding
interest arbitration procedure that will apply to future negotiation
disputes will best effectuate the purposes and policies of the Statute.
As for the Charging Party's request for attorney's fees and various
other expenses, we note that the Charging Party has neither indicated
under what authority it is seeking such an award nor in any other manner
demonstrated a basis under law and regulation by which such an award can
be granted. Therefore, the Charging Party's request in its current form
is denied.
ORDER
The U.S. Department of Energy, Washington, D.C. and U.S. Department
of Energy, Western Area Power Administration, Golden, Colorado shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the Decision and Order of the
Federal Service Impasses Panel in Case No. 84 FSIP 29 by failing to
implement the provisions directed by the Panel.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies and the Federal Service Labor-Management Relations
Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 29 by adopting a procedure providing
for binding interest arbitration of negotiation disputes, unless mutual
agreement otherwise has been reached with the International Brotherhood
of Electrical Workers, AFL-CIO, Government Coordinating Council #1
(Locals 640, 1759, 1959, 2159 and 1245).
(b) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 29 by granting a wage increase for
bargaining unit employees retroactive to the first pay period in June
1983.
(c) Post at the facilities within the U.S. Department of Energy,
Western Area Power Administration, Golden, Colorado, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Secretary of the U.S. Department of Energy, Washington, D.C., or a
designee, and the Administrator of the Western Area Power
Administration, Golden, Colorado, and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that such Notices are not altered,
defaced or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Additionally, the Charging Party sought assistance with respect
to the issue of pay rates for certain Foreman classifications. However,
this issue is not before us in this proceeding.
(2) Subsequent to the filing of briefs in this case, the Charging
Party filed an unopposed Motion to Supplement the Record. The Authority
was requested to take notice of an arbitration award involving Article
17, Section17.7. Such notice has been taken.
(3) 5 U.S.C. Section 5343 (Amendments) (1982) will be discussed
infra. The Panel decisions referred to are Department of the Interior,
Bureau of Reclamation, Regional Office, Lower Missouri Region, Denver,
Colorado and Local 1759, International Brotherhood of Electrical
Workers, AFL-CIO, Case No. 78 FSIP 41 (1978) (in which the parties had a
negotiated provision since 1960 calling for outside arbitration of wage
disputes), and Department of the Interior, Water and Power Resources
Service, Upper Colorado Region, Colorado River Storage Project, Page,
Arizona and Local 2159, International Brotherhood of Electrical Workers,
AFL-CIO, Case No. 79 FSIP 38 (1980) wherein the Panel directed the
parties to negotiate a provision for the use of binding arbitration,
without Panel approval, for the resolution of negotiation impasses).
(4) For the text of section 704 of the CSRA, see the Appendix at 1,
attached to this decision.
(5) For the text of section 9(b), see the Appendix, id.
(6) Respectively, WAPA 1 and WAPA 2 are identified as Department of
Energy, Western Area Power Administration, 3 FLRA 76 (1980), and
Department of Energy, Western Area Power Administration, Golden,
Colorado, Case No. 7-CU-24 (February 17, 1981).
(7) See Brief of the Charging Party at 15, 17-18.
(8) See Agency Brief at 5.
(9) See, for example, United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984),
aff'd sub nom. Department of the Air Force v. Federal Labor Relations
Authority, 775 F.2d 727 (6th Cir. 1985).
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the Decision and Order of
the Federal Service Impasses Panel in Case No. 84 FSIP 29 by failing to
implement the provisions directed by the Panel.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 29 by adopting a procedure providing
for binding interest arbitration of negotiation disputes, unless we have
mutually agreed otherwise with the International Brotherhood of
Electrical Workers, AFL-CIO, Government Coordinating Council #1 (Locals
640, 1759, 1959, 2159 and 1245).
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 29 by granting a wage increase for
bargaining unit employees retroactive to the first pay period in June
1983.
U.S. Department of Energy
Dated: . . . By: (Signature) (Title)
Western Area Power Administration,
Golden, Colorado
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado, 80202 and whose
telephone number is: (303) 837-5224.
APPENDIX
/4/ Section 704 of the CSRA provides as follows:
Sec. 704. (a) Those terms and conditions of employment and
other employment benefits with respect to Government prevailing
rate employees to whom section 9(b) of Public Law 92-392 applies
which were the subject of negotiation in accordance with
prevailing rates and practices prior to August 19, 1972, shall be
negotiated on and after the date of the enactment of this Act in
accordance with the provisions of section 9(b) of Public Law
92-392 without regard to any provision of chapter 71 of title 5,
United States Code (as amended by this title), to the extent that
any such provision is inconsistent with this paragraph.
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent
with this paragraph;
(B) subchapter IV of chapter 53 and subchapter V of chapter 55
of title 5, United States Code; or
(C) any rule, regulation, decision, or order relating to rates
of pay or pay practices under subchapter IV of chapter 53 or
subchapter V of chapter 55 of title 5, United States Code.
/5/ Section 9(b) of Pub. L. 92-392 provides:
The amendments made by this Act . . . shall not be construed to
--
(1) abrogate, modify, or otherwise affect in any way the
provisions of any contract in effect on the date of enactment of
this Act pertaining to the wages, the terms and conditions of
employment, and other employment benefits, or any of the foregoing
matters, for Government prevailing rate employees and resulting
from negotiations between Government agencies and organizations of
Government employees;
(2) nullify, curtail, or otherwise impair in any way the right
of any party to such contract to enter into negotiations after the
date of enactment of this Act for the renewal, extension,
modification, or improvement of the provisions of such contract or
for the replacement of such contract with a new contract; or
(3) nullify, change, or otherwise affect in any way after such
date of enactment any agreement, arrangement, or understanding in
effect on such date with respect to the various items of subject
matter of the negotiations on which any such contract in effect on
such date is based or prevent the inclusion of such items of
subject matter in connection with the renegotiation of any such
contract, or the replacement of such contract with a new contract,
after such date.